Ms. Ellen Totzke, Deputy City Attorney, City of Appleton, 100
North Appleton Street, Appleton, Wisconsin 54911-4799, on behalf of the City.

ARBITRATION AWARD

Pursuant to the provisions of the 2000-2001 collective bargaining agreement between
the City
of Appleton (City) and Appleton Professional Police Association (Union), the parties
requested that
the Wisconsin Employment Relations Commission designate a member of its staff as
arbitrator to hear
and resolve a dispute between them concerning the denial of Sergeant Janda's vacation
request for
September 28, 2001. The undersigned was designated Arbitrator herein. The hearing
in this matter
was originally scheduled for September 11, 2001, but was cancelled at the request of
the City. The
hearing was rescheduled and held on October 16, 2001, at Appleton, Wisconsin. A
stenographic
transcript of the proceedings was made and received on November 1, 2001. The
parties submitted
post-hearing briefs by December 3, 2001, which the Arbitrator exchanged for them.
The parties
waived the right to file reply briefs herein.

6321

Page 2

MA-11534

To maximize the ability of the parties we serve to utilize the Internet and
computer
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.

ISSUES

The parties were unable to stipulate to an issue or issues for determination in this
case, but
they agreed that the Arbitrator could frame the issues based upon the relevant evidence and
argument
in this case, as well as their subjected issues. The Union suggested the following issue:

Should Sergeant Janda have been allowed to use a vacation
day
on September 28, 2001? 1/

________________________

1/ As the
September 28th date had passed by the date of hearing herein, the
Union did not seek any monetary
remedy, merely an interpretation of the contract.

________________________

The City's suggested issue is as follows:

Does the City have the management right to deny vacation
days
pursuant to work and
scheduling requirements?

Based upon the relevant evidence and argument herein, I find that the following issue
reasonably states the dispute between the parties and it will be determined herein:

Did the City violate Article 8 of the labor agreement and/or
the
relevant past practices
surrounding it by refusing to allow Sergeant Janda to use a vacation day on
September 28, 2001?

Page 3

MA-11534

RELEVANT CONTRACT
PROVISIONS

ARTICLE 8 ­
VACATIONS

The vacation policy for the Police
Department to be on a work week basis as (sic) follows:

1 work week vacation after 1 year of
service.

2 work weeks vacation after 2 years of
service.

3 work weeks vacation after 8 years of
service.

4 work weeks vacation after 12 years of
service.

5 work weeks vacation after 20 years of
service.

Vacation benefits shall be accrued at a rate
of one-twelfth (1/12) of the employee's authorized
vacation for each full month of employment.

New employees will not be eligible for
vacation benefits until they have completed one (1) full
year of employment.

Vacation allowances shall not be cumulative
and after the qualifications have been met for
additional vacation, it must be taken between January 1 and December 31,
except that employees
entitled to one or two weeks of vacation shall be permitted to carry over up to one week of
vacation
into the following year and other employees shall be permitted to carry over all or portions
of their
third, fourth and fifth weeks of vacation into the following year, provided that they notify the
Chief
of their intent to do so not earlier than October 15 and not later than
November 1. Any vacation
carried over to the following year must be used by March 31 or it will be forfeited.

In case of termination, for reasons other
than discharge for cause, an employee will be paid their
accrued and unused vacation, calculated from their anniversary date to their termination date.

The Police Chief shall have a vacation
schedule available for members on or before January 1,
preceding the year vacations are to run, so that picking vacations can be completed by
March 1. The
order of picking vacations shall be by seniority. Employees hired on the same date shall be
assigned
relative seniority for purposes of this Article by the Employer at the time of hire.

. . .

Page 4

MA-11534

ARTICLE 28 ­ FUNCTION OF
MANAGEMENT

Except as herein otherwise provided, the
management of the Department and the direction of the
working forces, including the right to hire, promote, demote, lay-off, suspend without pay,
discharge
for proper cause, transfer, determine the number of employees to be assigned to any job
classification
or to determine the job classification needed to operate the Employer's jurisdiction is vested
exclusively with the Employer.

It is further agreed, except as herein
otherwise provided, that the responsibilities of management
include, but are not limited to those outlined in this Agreement. In addition to any functions
specified
herein, the Employer shall be responsible for fulfilling all normal managerial obligations,
such as
planning, changing, or developing new methods of work performance, establishing necessary
policies,
organizations and procedures, assigning work and establishing work scheduled, (sic)
and of applying
appropriate means of administration and control. Provided however, that the exercise of the
foregoing rights by the City will not be used for the purpose of discrimination against any
member
of the Association or be contrary to any other specific provision of this Agreement, and
provided that
nothing herein shall be construed to abrogate the provisions of the grievance procedure.

. . .

BACKGROUND

In approximately 1984, the City of Appleton created three districts: the Northern,
Central
and Southern districts. There is nothing in the labor agreement which states that districts
should
maintain separate seniority lists for vacation selection. Indeed, districts are not referred to in
the labor
agreement. As vacations are selected only within each district, an employee with less
department
seniority in one district may be granted Christmas week off while an employee with more
department
seniority in another district (but less than his/her district colleagues) is denied such a request.
Senior
employees have never been allowed to bump junior employees from a different district out of
their
vacation selections.

When special events occur in the City, officers are sometimes assigned to those
special events
pursuant to requests of the Operations Coordinator, even if the event occurs in a different
district than
the officer is normally assigned to. There is no mention in the labor agreement that a
one-week
vacation request shall prevail over a single day request.

Page 5

MA-11534

The City holds more than 80 special events, at least nine of which are offered
annually. The
largest special event in the City has been Octoberfest. Octoberfest has been offered annually
on the
Saturday of the last weekend of September for at least 12 years. 2/ Also, for many
years, the City
has offered "License to Cruise" which begins after 4:00 p.m. on the Friday prior to
Octoberfest. In
2001, "License to Cruise" attracted approximately 50,000 participants, and Octoberfest
attracted
approximately 150,000 participants. These numbers were significantly higher (by from
10,000 to
50,000) than the City had ever experienced before regarding these events.

________________________

2/ Sergeant Janda admitted that
he knew Octoberfest was regularly held during the last weekend of
September.

________________________

Annually, the Chief of Police issues separate vacation calendars to each Police
Department
district (Northern, Central and Southern). All officers then select one week of vacation at a
time
according to district seniority in rounds by submitting "Work Assignment Request"
forms 3/ and their
picks are recorded on each district's calendar. The three districts do not coordinate vacation
together
and they do not share their vacation calendars. The deadline for the first week's request is
generally
set for the end of January each year. Week long vacation requests must be submitted by
March 1
each year in order to be granted on a district seniority basis. After March 1, vacation
is selected and
granted on a first-come/first-served basis except that if an employee (even one with less
district
seniority) requests a full week's vacation after March 1, that request will be given
priority by the
District Commander over a single day request made on the same day, even when the single
day
request is made by an employee with more district seniority.

________________________

3/ These forms are also used
before and after March 1st each year by officers to request sick
leave,
compensation time off and funeral leave, as well as vacation.

________________________

Department managers have had a practice of highlighting days with a yellow marker
on which
the department will need more on-duty staff due to special events. These days are known as
"yellow
out" days and they are used to alert district schedulers to special scheduling/staffing needs on
a
particular day. Only during Christmas week and deer hunting have district managers denied
one-week vacation requests because of the large number of requests made for time off.

Page 6

MA-11534

The City does not have formal minimum manning levels. Each district determines its
own
staffing needs and grants vacation requests for each work day without regard to what other
districts
have done. District managers do not cancel vacations once they are granted. District
managers are
not aware of how many employees have been granted time off in other districts.

The City Police Department employs an Operations Coordinator, Rudolph Nyman,
who
coordinates City special events across district lines. Nyman generally issues a memo in
March or
April of each year regarding upcoming special events. Then, approximately 30 days before
each
event, Nyman sends out a memo to all district managers seeking the number of staff each
district can
offer him to cover that special event. Normally Nyman lists the number of officers he will
need for
each event in this memo. Nyman is not informed of vacation and comp time requests that
have been
granted in each district until the day of the special event when Nyman can view the overall
schedule
for that event. As such, some District Commanders may offer Nyman more (or less) staff
for each
special event than others, based upon each District Commander's judgment regarding his/her
general
flexibility or lack thereof in granting employee vacation. Nyman must then fill in with
officers on
overtime for special event openings, or he can hold over officers who have finished their
regular shifts
for a period of overtime, or he can cancel officers' last day off to cover overtime openings.
Nyman
also uses Community Service Officers, who are students from University of Wisconsin or
Fox Valley
Technical College, to fill in at special events in non-critical, non-emergency positions such as
traffic
control, etc. Nyman does not go back to the District Commanders and tell them to deny
vacation
requests if he is in need of more officers to fill slots for a special event.

In 1998, Sergeant Janda requested New Year's Eve off and his Captain found
someone to
work for him. The school liaison officers were ordered into work that year to accommodate
vacation
requests of regular full-time officers. 4/

________________________

4/ New Year's Eve is considered
a special event in the City of Appleton which requires extra manpower.

________________________

In 1997, then-Lieutenant Klauk issued a memo concerning comp time requests,
vacation
picks, 5/ as well as shift trading to all Northern district officers, including Sergeant
Janda. This
memo, which listed all officers on the back of the memo by their district seniority, read in
part as
follows concerning trading:

Page 7

MA-11534

. . .

With the selection for next years shifts
being completed, I felt that this was a good time to review
the district scheduling procedures. Most of these procedures have been in place for several
years and
most are the same across the districts.

. . .

DAY-FOR-DAY SCHEDULE CHANGES

Individuals wishing to take off on a
scheduled work day and work back on a scheduled day off,
shall make the request in a timely manner in order to give the scheduler adequate
consideration to
facilitate the change. The day-for-day change will, when possible, take place within 30 days
of the
two transaction dates. The switch may only be approved by a Northern District Supervisor
and the
pay back day will be scheduled when the request is approved. The day to be worked back
should be
one which will assist the district to meet its scheduling needs.

Switching shifts with another district officer
will be allowed but requests are not to be submitted
more than six weeks in advance.

ACROSS-DISTRICT
CHANGES

If an officer can not (sic) be granted an
authorized absence from an assigned shift, as a last
option, an across-district work schedule change can be arranged. This must meet with the
approval
of both individuals involved and their respective schedule lieutenants. Once again, the
request must
be done in a timely manner (generally 7 days) to give all parties involved adequate time to
complete
the change. The day for day switch will only be for one day and will occur within a 30 day
time
frame, within the same calendar year. Both officers (sic) signatures will be needed on
the PD form
#15.

The other condition attached to an
across-district change involves case transferring lengthy
follow-up investigations. These will be transferred to the

Page 8

MA-11534

district officer who would have normally been assigned the call
had he or she not made the
change. This helps to keep the follow-up time in the involved district with the appropriate
district
officer assigned. 6/

. . .

________________________

5/ The memo did not detail the
vacation selection procedures. Rather, it stated, "The seniority practice for
vacation week picks will continue as before."

6/ The
Association never disputed the applicability of this memo and never contended Janda did not
receive
it or that he was unaware of it.

________________________

The evidence was undisputed that this memo is still in effect in the Northern district.

FACTS

Grievant, Sergeant Thomas Janda, has been employed by the City's Police
Department for
the past 12 years. At all times relevant hereto, Janda was assigned to the Northern district
on the
8:00 a.m. ­ 4:00 p.m. shift. 7/

________________________

7/ Captain Klauk, Commander of
the Northern district, at all times relevant to this case, has regularly allowed
Janda to work 10:00 a.m. ­ 6:00 p.m. on weekdays and 8:00
a.m. ­ 4:00 p.m. on weekends as an accommodation
to Janda.

________________________

On April 14, 2001, Janda, who had one week and one day of vacation left to
select, requested
a single day's vacation for September 28, 2001. At this time, September 28 had
not been "yellowed
out" by management. On April 20, Northern district's scheduler, Lieutenant Watch,
"yellowed out"
September 28 and denied Janda's request for vacation that day, stating that it was due
to the
Octoberfest event. Janda was then transferred for September 28th to work in the
Central district on
a walking beat from 8:00 a.m. ­ 4:00 p.m., so that his shift would
have ended prior to the start of the
special event, "License to Cruise." However, in late August, 2001, Lieutenant Watch
changed
Janda's assignment to 12 noon ­ 8:00 p.m. on September 28 in the
Central district based on a request
from District Commander Klauk. 8/

________________________

8/ Captain Klauk had requested
that employees on the 8:00 a.m. ­ 4:00 p.m. shift on
September 28 be moved
to the 12 noon ­ 6:00 p.m. shift so that they could be held over in case
they were needed to cover the "License to
Cruise" event.

________________________

Page 9

MA-11534

Janda thereafter sent Lieutenant Watch an e-mail requesting to be put on a patrol
assignment,
not on the special walking assignment in the Central district, due to a prior back injury he
had suffered
which made it difficult for him to walk on concrete for long periods of time. Janda's request
was
granted by Lieutenant Watch and Captain Klauk. Janda could have traded with another
officer to get
September 28th off. When Lieutenant Watch denied Janda's
vacation day request for September 28,
Watch also told Janda he could still arrange a trade. 9/ Janda chose not to attempt
trading for
September 28. It is undisputed that Janda would have been granted vacation for
September 28 had
he asked for that day as a part of a full week's vacation request.

________________________

9/ Indeed, Northern district
Officers Blessing and Fischer traded off for the weekend of September 28 after
Janda's vacation request was denied because they arranged trades with other
officers.

________________________

Northern district Commander Captain Klauk also stated that it is his practice to try to
keep
everyone who is scheduled to work during a special event at work in case more staff is
needed by the
City. Klauk stated herein that two weeks before Octoberfest one of his officers resigned
unexpectedly and that another officer had resigned earlier in the year so that Klauk was
shorthanded
in his district. Klauk stated that there is no specific time by which his scheduler, Lieutenant
Watch,
must "yellow out" special event days and Klauk admitted that Lieutenant Watch has been
known to
procrastinate in this area. On September 28, 2001, for "License to Cruise," Special Events
Coordinator Nyman employed 6 officers on overtime; for Octoberfest, Nyman employed 39
officers
on overtime; and Nyman employed 10 officers on overtime for the Fox Cities marathon (held
September 30th).

Officers Miles and Glice are junior to Janda in departmental seniority, but they are
employed
in districts other than the Northern district. Each of these officers made one-week vacation
requests
after April 14th and they were granted vacation time off for one
week, which included September 28.
Officers Konkle and Ostermeier, less senior than Janda and also not employed in the
Northern district,
were granted compensation time off on September 28 upon their request therefor after
April 14. 10/

________________________

10/ Officer Janda was granted
September 29 off as he had attended a hostage training session on behalf of
the City on one of his off days in March and the City owed him a day off. Captain Klauk
stated that he does not
like to owe an officer a day off in such a situation for a long period of
time.

________________________

Page 10

MA-11534

POSITIONS OF THE PARTIES

Union

The Union argued that the City violated Article 8 of the labor agreement by
refusing to
schedule Sergeant Janda for vacation on September 28, 2001, while permitting junior
employees to
take vacation and comp time that day. In this regard, the Union noted that Article 8
requires that
vacation requests be granted on a first-come/first served basis by "seniority"; that because
Janda was
the most senior officer and the first one to make a request, he should have gotten
September 28th off.
The City's argument that a full week request should get precedence over a one-day request
was, in
the Union's view, false and should not constitute a defense in this case. On this point, the
Union
urged that the City granted comp time requests at a later date after Janda requested vacation
time off
and that only after Janda made his request did the City grant full week vacation requests of
other
officers in other districts. In addition, the Union noted that the date of
September 28th was not
"yellowed out" when Janda requested the day off and that four other officers' requests were
granted
after the date was "yellowed out." Furthermore, the Union urged that Articles 22 and
24 prohibit
unilateral policy or bilateral non-executed policy from overriding specific contract language.

The Union urged that the City had no justification for its actions in this case. In this
regard,
the Union urged that the City could not justify denying Janda's request based on operational
need.
The Union found it ironic that the two districts (Central and Southern) that both needed help
on
September 28th had actually granted six employees off, making their
need for extra staff essentially
a self-inflicted wound. In addition, the Northern district had nine officers scheduled to work
on
September 28th which was one more than their normal shift
complement of eight on regular days.
This was so in the Northern district while the District Commanders of the Central and
Southern
districts had liberally granted vacation and comp time to their employees for the weekend of
September 28th. Further, the Union noted that approximately 6 of 24
overtime slots were scheduled
for the "License to Cruise" which essentially simply replaced the officers from the Central
and
Southern districts who had been granted time off on that day. No reason was given why
Janda's shift
could not have been covered as well by officers working on overtime as was true for officers
in the
Central and Southern districts.

The Union urged that the City's denial of vacation to Janda cannot be justified based
on
custom or practice. The Union noted that Chief Peterson stated that the department normally
only
transfers officers from one district to another in order to accommodate an officer's desire for
vacation
in exceptional and compelling circumstances. The six employees who were granted either
vacation
or comp time did not have such exceptional or compelling circumstances to support their
cases.
Thus, the Union queried why Sergeant Janda could not have had his vacation request also
granted.

Page 11

MA-11534

Further, the Union argued that the City cannot justify denying Janda's vacation
request due
to the City's organization into three separate districts. Although the City can organize any
way it
wishes, in the Union's view, it may not destroy the seniority of employees and their right to
vacation
based on its organizational desires. The Union posed a result which it contended would be
absurd
that, by arranging its districts in a certain way, the City could deny its most senior officers'
vacation
rights and allow its most junior officers to take vacation over the senior ones if the City were
allowed
to do as it did in this case.

Thus, the Union urged that a past practice or acquiescence cannot operate to deny the
application of clear contract language as in this case. Article 8 would mean nothing if
Janda, who has
more seniority, is refused vacation while less senior employees are granted vacation, in
violation of
the sentence, "The order of picking vacation shall be by seniority." Whether the City acted
in good
faith or negligently or maliciously or whether Janda tried other alternatives in order to get
vacation
on September 28th is not relevant in the Union's view. Seniority
rights are not rights of last resort.
Rather, they are contract rights and in this case, the Union urged that the contract clearly
states that
vacations must be selected by seniority. Therefore, the City's defense that it tries to
accommodate
officers' requests for vacation is not a defense. Indeed, the City failed to show that it
attempted to
accommodate Janda's request in any fashion.

The Union argued that the City violated Article 8 of the labor agreement by
arbitrarily refusing
Janda's reasonable request to use vacation, without regard to his seniority. The Union
contended that
there was in fact a question whether "License to Cruise" was the type of big event which
might be
considered an exception to seniority rules. If this were so, the Union queried why the
captain of the
Southern district (Captain Bahr) put himself on vacation during the Octoberfest weekend.
Further,
the Union noted that the captains of the Southern and Central districts waited until September
to
make special assignments during the big events on the weekend of
September 28th.

The Union noted that no one told Janda that he could trade shifts or that if he took
one week
of vacation around September 28th that his request would be granted.
Thus, Janda was the only
employee denied vacation and not told about the trading and precedence of one-week
requests. This,
the Union found, was arbitrary. Further, the Union urged that the City proceeded
backwards ­ that
it does not put any restrictions on its captains in granting vacation and comp time and that
Special
Events Coordinator Nyman simply fills in with overtime based upon the number of slots he
cannot
fill with regular officers rather than determining how many officers or slots are needed and
then
making assignments and keeping track of vacation and comp time requests.

The Union urged that Captain Klauk runs the Northern district strictly and denies
vacation
requests, while Captain Bahr takes vacation himself and grants liberal vacation and comp
time to his
employees. This, the Union found, was also arbitrary. Chief Peterson's comment that
integrity
should operate so that the various captains do not grant too much

Page
12

MA-11534

vacation while requesting greater assistance from other districts, simply has not
worked. Here, the
coordinator is really a misnomer ­ Lieutenant Nyman has no power to
deny vacations or even to
transfer employees; that Nyman also has insufficient information and that he does not
actually
coordinate any activities between the districts. Rather, Nyman only takes the number of
officers from
each district captain and then posts the remaining slots for overtime.

The Union noted that although "management may have the right to be haphazard (in
regard
to granting vacation and comp time requests),it cannot do so at Sergeant Janda's expense."
Rather,
employers must apply rational standards which treat all similarly situated employees the same
or they
run the risk of being found to be arbitrary and capricious. Here, the City has been arbitrary
and
capricious. Thus, the Union sought an order directing the City to grant vacation requests in
the
future, based upon "seniority."

City

The City argued that it exercised its reasonable management rights under
Article 28 to deny
Sergeant Janda's vacation request for September 28, 2001. In this regard, the City
noted that it has
the right and the obligation to assign work and establish schedules; that the City makes every
effort
to accommodate officer requests for time off; and that the Octoberfest weekend is the biggest
weekend for police manpower in the City based on the number of people in attendance and
the fact
that the weekend covers three special events. The City noted that everyone is aware that
Octoberfest
has occurred annually on the last weekend in September each year, and that those days are
generally
"yellowed out" by district managers. Therefore, it does not matter if
September 28th was "yellowed
out" before or after Janda made his request for that day off as it was common knowledge
that the
weekend of September 28th was a big special event weekend in the City of Appleton.

The City argued that it has complied with Article 8 of the labor agreement.
Furthermore, the
City argued that there is a clear past practice of accommodating vacation requests on a
first-come/first-served basis after the initial seniority picks have been completed by
March 1st of each year;
that week-long vacation requests have generally been honored over one-day requests and that
other
options such as trades are available to all officers.

Furthermore, the City argued that vacation and staffing have not been viewed on a
department-wide basis. In this regard, the City noted that it has had separate districts for
many years
and that vacations have been handled separately within each district by each district captain
who
determines the level of staffing for his/her district and the level of accommodation to be
applied in
granting requests for time off. The City noted in addition that others in the Northern district
did not
get time off either, unless they traded, due to Captain Klauk's decisions regarding the
weekend of
September 28th. Finally, the City noted that Lieutenant

Page 13

MA-11534

Nyman filled many open slots during the Octoberfest weekend with officers on
overtime and that the
City's decisions were in accord with prior WERC arbitration awards concerning vacation
scheduling.
Therefore, the City urged that the grievance be denied and dismissed in its entirety as no
violation of
the contract occurred in this case.

DISCUSSION

Article 8 ­ Vacations states that "The order of picking vacations shall be by
seniority." The
Union has argued that this language is clear and unambiguous. However, in the Arbitrator's
view,
this contract language is ambiguous in that it fails to elaborate regarding what type of
seniority ­
department or district seniority ­ should control.

Where a contract is silent, past practice or bargaining history can serve to fill in the
blanks in
certain circumstances. Where a custom or practice is long-standing, mutually understood and
agreed
upon, it can flesh out ambiguous contract language. Here, the City submitted undisputed
evidence
which showed that for the past 17 years, the Police Department has been divided into three
districts
and that since that time, the City has arranged vacations within each district pursuant to
Article 8.

For example, the undisputed evidence showed that vacations are never coordinated
from
district to district and that each district maintains its own vacation calendar. In fact, district
captains
do not have knowledge of or access to the vacation calendars of other districts. It is also
undisputed
that more senior employees have never been allowed to bump junior employees in a different
district
out of their picked vacation and that a junior employee in one district may be granted a
certain
vacation day or days while a more senior employee in a different district is denied that same
day or
days, based upon his/her seniority vis a vis other employees in his/her district.
In addition, no
evidence was submitted herein to show that any grievances have been filed regarding the
application
of district seniority to pick vacations. Thus, in the Arbitrator's view, the City has proven a
well-established, long-standing, mutually agreed-upon past practice which demonstrates that
the reference
to seniority in Article 8 must be read to mean district seniority.

In the instant case, Sergeant Janda made his vacation request after March 1 for
a single day
of vacation, September 28, 2001, before that day was "yellowed out." Whether or
when
September 28th was "yellowed out" is not particularly relevant to the
inquiries in this case. The
process of "yellowing out" a day or days is not addressed in the labor agreement. In fact,
the Union
did not assert that the City "yellowed out" September 28th as a means
of denying Janda his rightful
vacation time off. Rather, the facts showed that the weekend of
September 28th was "yellowed out"
because of the three significant special events which annually have fallen on that weekend
and which
have always required greater than usual manpower. Thus, the City's action in "yellowing
out"
September 28, 2001, was done to give

Page 14

MA-11534

City managers a tool to assist them in considering employee vacation requests made on
days such as
those, when the Department expects to be in need of more law enforcement manpower than
usual.

The Union has argued that because the City granted other junior employees (in other
districts)
comp time and vacation time on September 28th while denying
Janda's prior request for
September 28th off, this not only violated Article 8 but also
constituted arbitrary and capricious action
by the City. These arguments must fail based on the 17-year past practice proven by the
City and the
facts of this case. Janda was treated the same as all other Northern district officers ­
his vacation
request was denied by Captain Klauk who was empowered to make that decision. In this
regard, I
note that the Chief of Police clearly has the right to contractually delegate the authority to
grant or
deny vacations to his district captains who must do so as they see fit, according to
Article 8 and its
accompanying past practices.

The fact that some district captains appear to be more liberal in granting their
officers'
requests for time off does not mean that Captain Klauk has necessarily been unfair or
arbitrary in
denying such requests from his Northern district officers. On the contrary, Captain Klauk
appeared
herein to demonstrate that he was well aware of Article 8 and its accompanying past
practices and
that he was genuinely concerned that the Department have sufficient staff to man the special
events
on the weekend of September 28th. Furthermore, it is clear from this
record that Captain Klauk was
unaware how his fellow district captains were dealing with vacation requests in their districts
at the
time he (Klauk) denied such requests from his officers. Finally, the facts herein
demonstrated that
the weekend of September 28th covers the three largest special events
held in the City annually which
require enhanced police protection.

A great deal of evidence was placed in this record regarding whether a one-week
vacation
request should be given precedence over a single day request pursuant to the parties' past
practice
on granting vacation requests. In the instant case, this issue is not squarely before the
Arbitrator, as
no full week vacation requests, which included September 28th, were
granted by Captain Klauk in the
Northern district. Indeed, no vacation requests of any kind were granted by Captain Klauk
to
Northern district officers. Therefore, the award in this case is not intended to and need not
comment
upon or decide this issue.

The Union argued that Janda was never told by management that if he requested one
week's
vacation or sought a trade with another officer he could get
September 28th off. Captain Klauk stated
herein that he instructed Lieutenant Watch to inform Janda of his options to get
September 28th off.
Lieutenant Watch did not testify herein. However, under the facts of this case, it is difficult
to believe
that Janda, an officer with the City for the past 12 years, was unaware that he had these
options.
Indeed, Janda admitted that he knew that Octoberfest was always held on the last weekend of
September when he asked to have September 28th off. Furthermore,
Janda admitted he was aware
that the districts do share staff to accommodate vacation requests, sick leave, comp time, and
special
events. Finally, I note that the City

Page 15

MA-11534

submitted a document herein, a December 1, 1997 memo from then-Lieutenant
Klauk regarding
district scheduling procedures, which was addressed to all Northern district officers, of
whom Janda
was one. In that memo, Klauk made clear that day-for-day schedule changes and
across-district
changes (trades with other officers both within and without the officer's district) were
allowable
under the district vacation scheduling practices. In addition, I note that on this record, Janda
did not
specifically deny receiving the Klauk memo and he did not deny knowing that he had these
trading
options for the day of September 28th.

The Union has argued that the Lieutenant Nyman's "coordinator" position is really a
misnomer, as Nyman has no power to deny vacation or transfer employees and he does not,
in fact,
coordinate any activities between the districts. Whether Lieutenant Nyman actually
coordinates
special events or merely solicits overtime and posts lists of officers who are to work that
overtime
is really a function of management, to choose how it wishes to administer these special
events. In
addition, it is significant that the Police Department does not have formal minimal manning
levels that
it requires.

In its brief, the Union argued for the first time that the City violated
Articles 22 and 24 by
denying Janda's vacation request for September 28, 2001. In this regard, I note that
the Union failed
to argue that these Articles had been violated during the processing of the grievance. The
Union also
did not mention these Articles at the grievance arbitration hearing. Thus, the Union has
attempted
to raise these arguments too late and they have not been considered herein.

Therefore, based on the relevant evidence and argument in this case, I issue the
following

AWARD

The City did not violate Article 8 of the labor agreement or the relevant past
practices
surrounding it by refusing to allow Sergeant Janda to use a vacation day on
September 28, 2001.
Therefore, the grievance is denied and dismissed in its entirety.